1982 PLP 945 (PLC(CS))

Representation

• ‑‑‑ S. 25‑A (t)‑Notice to employer‑‑.Through Advocate ‑Invalid‑,Grievance petition dismissed by Labour Appellate Tribunal and ground that grievance notice served through Advocate invalid Fresh notice to employer served not immediately on decision of Appellate Tribunal but after 16 days thereof ‑Na explanation for delay‑Condonation of delay, in circumstances, Meld, not justified and grievance petition on basis of such delayed fresh grievance notice not maintainable being time‑barred.
• 2. The circumstances which have given rise to these 2 appeals are that the 2 appellants, who claimed to have been employed in the respondent mills as Overlook Operators, were allegedly illegally re moved from service on 26th and 28th November, 1977, respectively. They accordingly challenged the said action on the part of the respondent mills by way of grievence petitions before the learned 1st Labour Court. Their grievance petitions were allowed by the learned Labour Court which directed the respondent mills to re‑instate the appellants in service along with back benefits. On appeal this Tribunal held that since the necessary grievance notices were not served upon the management by the appellants themselves, but were given through an Advocate, the notices were not valid and consequently the grievance, petition of the appellants were not maintainable. It accordingly dismissed the claim of the 2 appellants and allowed the appeals of the management. Thereafter, on 21st May, 1980, the appellants served fresh grievance notices upon the management in respect of the purported termination of the services in 1977, and as they received no response to the said notices, they filed second grievance petitions before the learned 1st Labour Court on 8th September, 1980. These grievance petitions having been dismissed by the learned IVth Labour Court on the ground that as though admittedly the appellants were dismissed from service subsequently in May, 1980, the grievance notices given on 21st May, 1980, were in respect of the earlier alleged termination of services in November, 1977, which could not be challenged on account of the decision of this Tribunal, dated 5th May, 1980, which had attained finality. With regard to the subsequent dismissal orders in May, 1980, the view taken by the learned Labour Court was that the same has not been challenged by the 2 appellants and consequently the said orders cannot be interfered with.
• 3. I have heard Mr. Choudhry M. Maarif, the learned representative for the 2 appellants. His main contention was that this Tribunal had dismissed the claim of the 2 appellants. and allowed the appeals of the management solely on the ground that the requisite grievance notices was given by the 2 appellants through an Advocate and not given to the management in accordance with the provisions of subsection (1) of section 25‑A, I. R. O. The learned representative argued that at the time when the notices were given by the appellants to the management in 1977, the law on the subject was rather unsettled as it was held by the Karachi High Court in the case of Dawood Hosiery Mills v. Hazrat Muhammad Yosuf (Writ Petition No. 264 of 1975) that service of notice through an Advocate was valid service disagreeing with the earlier decision of the High Court in the case of Hussain Textile Mills v. Muhammad Ishaque (Appeal No. KAR‑440/1973) taking the contrary view. No doubt, in the case of Dawood Hosiery Mills, it was held by a learned signgle Judge of the Karachi High Court that notice through an Advocate was valid notice for the purpose of subsection (1) of section 25-A, I. R. O. and this decision was approved by a Division Bench of the Karachi High Court, but the Supreme Court in the case of Syed Muhammad Hussain v. Pakistan Tobacco Company (PLD1980SC80), authoritatively decided that notice through an Advocate was not a valid notice for the purpose of subsection (1) of section 25‑A, I. R. O. This decision which was given on 8th March, 1980 was relied upon by this Tribunal, while passing its order, dated 8th March. 1980 rejecting the claim of the 2 appellants. At least after the said decision of the Supreme Court, there was not further room for any confusion on the issue whether notice through an advocate was or was not valid notice for the purpose of subsection (1) of section 25‑A. As such even, if the time elapsing up to the date of the decision of the Supreme Court could he properly excluded, it was incumbent upon the appellants, if they sought condonation of delay in regard to the service of the notice, to serve the requisite notice upon, the management immediately after the announcement of the decision by the Supreme Court or at least as soon as the decision came to their notice. Even if the appellants and their learned counsel were unaware of the said decision of the Supreme Court earlier, they are deemed to have become aware of the said decision on 5th March, 1980, when the claim of the 2 appellants were dismissed by this Tribunal on the basis of the above ruling of the Supreme Court. However, it took the appellants further 16 days to serve the grievance notices upon the management. No explanation has been submitted by the appellants for this delay of 16 days in serving fresh notice. It is well settled law that the party which seeks ‑ condonation must explain each day's delay. This the appellants have failed to do, as pointed out.

Judgment & Decree